FAZARA KHATUN BIBI Vs. MATIOR RAHMAN

JUDGEMENT

(1.) In this suit for dower by a Muhammadan widow, one of the pleas raised by the defendants is that the suit is barred by the Law of Limitation. According to the plaintiff her husband died on the 27 February 1914. According to the defendants his death took place sometime in 1913. There were several issues raised in the case but the only issue tried by the Courts below was one of limitation. The learned Munsif was of opinion that Art. 103 of the Limitation Act, was applicable; but he proceeded to examine the case on the assumption that it was governed by Art. 116, and found on the evidence that Yar Ali (the husband of the plaintiff) bad died more than six years before the institution of the suit. He, therefore, held that the plaintiff's suit was barred by limitation. On appeal the learned Subordinate Judge - did not agree with the Munsif that Yar Ali had died more than six years ago as alleged by the defendants. He was inclined on a consideration of the evidence to accept the version of the plaintiff; but as he was of opinion that in any case the suit was barred by limitation he did not enter any finding to that effect. On the question of limitation his view is that the plaintiff being a minor at the time when the kabilnama was executed and registered, the marriage having taken place with the con-sent of the father the kabilnama did not create any contract between the plaintiff and her husband and, therefore, Art. 116 did not apply to the present case, which was governed by Art. 103 of the Limitation Act.

(2.) In my judgment the opinion of the Court below cannot be supported. It is well known that in marriages among Muhammadans whore one of the contracting parties is a mino, it is solemnized with the izu or permission of the marital guardian of. the infant which has the effect of the contract being entered into between the parties, who are married. In this particular case the kabilnama was executed in favour of the wife (the plaintiff). There is no question, therefore, that she was a party to the contract, It is argued on behalf of the respondent that as she was a minor at the time, when this contract of marriage was entered into and as there could not be any specific performance of this contract against her the contract of marriage was void. It is surprising to me that such ah argument is advanced from the bar. In support of the indefensible portion taken by the respondent reference has been made to the case of Mir Sarwarjan V/s. Fakhruddin Mahomed Chowdhuri [1912] 39 Cal. 282, I fail to see any connexion between that decision and the present case. In that case it was held that if a contract was entered into on behalf of a minor by a person, who had no authority to bind the minor's estate, the minor is not in law entitled to enforce such a contract for want of mutuality between the contracting parties: That was the case of specific performance of a contract relating to property. In a case of marriage between Muhammadans the real contracting parties are the husband and the wife and under their personal law they are entitled to enter into a contract of marriage even before they have become major under that law; and that contract of such minors are entered into through their guardians specified by their personal law. Those contracts are as good a; those entered into by the minor himself or herself for. the purpose of creating rights and obligations. The result of the adoption of the view urged by the respondents is that though the wife surrenders her person and enters into material obligations she is not entitled to claim the dower, which the husband promised to pay to the wife as consideration for the marriage. The kabilnama was executed in favour of the plaintiff. The contract thus evidenced by it does not lose its character, if the marriage was solemnized through the agency of a guardian, In my opinion the judgment of the lower appellate Court cannot be upheld and must be set aside It is hardly necessary to say that the law as to which article of the Limitation Act is applicable to a registered kabilnama is practically settled. See the cases of Asiatulla V/s. Danes Mahommad A.I.R. 1923 Cal. 152 and Mahammad Mazaharal V/s. Mahammad Azimuddin A.I.R. 1923 Cal. 507.

(3.) The result is that this appeal is allowed, the decree of the lower appellate Court set aside and the case remanded to the Court Of first instance for trial of all the issues raised in the case including the issue of the date of death of Yar Ali, the husband of the plaintiff. The appellant is entitled to the costs of this appeal. The costs of the lower Courts will abide the result. Duval, J.